Who is the attorney?

City Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51981(U)(App. Term 2d Dept. 2019)

This only happens in Civil Kings. I think one attorney in particular really wanted to play this argument all the way to the end. My only thought was to do what you want, I will eventually win. It was one of the sleazier arguments i have endured in my 17 years of practice. The effort I personally went through to stop the insanity was herculean. Sadly, it took the wisdom of several Supreme Court Justices at the Appellate Term to see what Civil Court Special Term and Trial Judges got wrong.

“In this no-fault action, a default was taken against defendant on April 28, 2017, because counsel appearing on defendant’s behalf, The Law Office of Jason Tenenbaum, P.C., was not the attorney of record and the court determined that counsel had not established “that it represents the [defendant] pursuant to the CPLR,” and, thus, that defendant had failed to appear. Defendant, represented by the same counsel, subsequently moved to open the default. It submitted, among [*2]other things, a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C. as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court (Rosemarie Montalbano, J.) denied defendant’s motion, stating that defendant had “failed to establish a reasonable excuse for failing to have its incoming counsel produce for the court proper proof of its legal representation of defendant.” A judgment was entered on May 24, 2018, awarding plaintiff the principal sum of $4,319.29.

Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967]), which, in this case, was the order entered May 8, 2018 denying defendant’s motion.

Prior to the April 28, 2017 court date, on which the trial was scheduled to begin, defendant had made two different attempts to effect a substitution of counsel. It filed an application in the Supreme Court to have an order of substitution executed. It also attempted to move in the Civil Court, by order to show cause (OSC), to stay the trial pending the determination of the Supreme Court application or, in the alternative, for the Civil Court to make the substitution. Defendant submitted, in support of each application, a November 14, 2016 affidavit executed by Richard Dowd, who identified himself therein as defendant’s claim manager. Dowd listed four firms, including defendant’s former counsel of record in this case, that had previously handled no-fault cases for defendant. Dowd stated that those firms had all been disbanded prior to January of 2016 and that the files previously handled by those firms were all being handled by The Law Office of Jason Tenenbaum, P.C. and another named firm. He further stated that “[w]e hereby consent to The Law Office of Jason Tenenbaum, P.C. and [the other firm] to handle all of the files that above counsel handled, where a Notice of Appearance is filed with the Court.” Defendant also submitted, in support of its Civil Court motion, the April 24, 2017 notice of appearance.

The Civil Court refused to sign the OSC. In court on April 28, 2017, an associate with The Law Office of Jason Tenenbaum, P.C. sought an adjournment or a substitution on the same grounds laid out in the proposed motion, which oral application was denied. However, the Supreme Court granted defendant the requested relief by order entered May 4, 2017. The order of substitution, the validity of which has not been questioned, states that it is “ordered and adjudged that [T]he Law Office of Jason Tenenbaum, P.C. or [the other firm], upon Filing a Notice of Appearance is substituted in the stead” of [the disbanded firms] for all no-fault cases involving Global Liberty Insurance Co. of New York.”

CPLR 321 (b) permits the change or withdrawal of an attorney, insofar as is relevant here, by the filing of a consent to change attorney signed by the retiring attorney or by motion on such notice as the court may direct. Defendant did not strictly comply with CPLR 321 (b) (1), regarding a consent to change attorney, because the retiring attorney was a firm that no longer existed. Defendant was unable to comply with CPLR 321 (b) (2), regarding a motion, because [*3]the Civil Court declined to sign its OSC prior to the trial. Under the circumstances, including the presentation of the Dowd affidavit and notice of appearance to the court before defendant was held to be in default, and the order of substitution entered by the Supreme Court soon after defendant was held to be in default, defendant’s failure to comply with CPLR 321 (b) does not justify the entry of a default judgment (cf. EIFS, Inc. v Morie Co.,298 AD2d 548 [2002]; Tillman v Mason,193 AD2d 666 [1993]; Juers v Barry, 114 AD2d 1009 [1985]). Thus, we grant defendant’s motion to open its default in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith,20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment, insofar as reviewed, is reversed, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.”

No need for an affidavit

Watabe v Ci:Labo USA, Inc., 2019 NY Slip Op 00354 (1st Dept. 2019)

” The fact that Sugioka and Otani, as well the other plaintiffs, testified at a deposition with the assistance of a Japanese translator does not preclude them from drafting their affidavits in English, and, accordingly, their affidavits did not need to be accompanied by an affidavit by a Japanese translator. “

Always scratched my heard when this came up.

Electronic signatutres

Ramirez v Miah, 2018 NY Slip Op 07472 (2d Dept. 2018)

“We disagree with the Supreme Court’s determination that the electronic signature on the plaintiff’s physician’s affirmed report was insufficient to render the report admissible pursuant to State Technology Law §§ 302(3) and 304(2)(see Forcelli v Gelco Corp., 109 AD3d 244, 250-251; Naldi v Grunberg, 80 AD3d 1, 12-13; cfVista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778).”

We have evolved from Vista.

A second affidavit to clarify is allowed

Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905 (1st Dept. 2018)

“The motion court properly accepted Veras’s second, clarifying affidavit in plaintiff’s submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras’s initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras’s second affidavit was a proper response to defendant’s submission, and did not contradict the statement in his first affidavit (see Cox v McCormick Farms, 144 AD3d 1533 [4th Dept 2016] [where question was not directly asked in deposition, proper to consider subsequent affidavit providing greater specificity without directly contradicting deposition testimony]; Severino v 157 Broadway Assoc., LLC, 84 AD3d 505 [1st Dept 2011] [same]). Nor could Veras’s second affidavit be rejected as raising a feigned issue of fact (see Sutin v Pawlus, 105 AD3d 1293 [3d Dept 2013]; Kalt v Ritman, 21 AD3d 321 [1st Dept 2005]), especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras’s own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.”

Substantive fee schedule discussion/Procedural analysis

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706(U)(App. Term 2d Dept. 2017)

(1) “With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue”

** this was clearly an issue of  “additional bonus codes” that were by report or where the carrier sough to change the billed for code.  It does not involved 97810, 97811, 97813, 97814 or modality codes with RVUs compensated at the Chiropractor rate **

(2) “We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001).”

** People ex rel. Fifth Ave. & 37th St. Corp. v. Miller, 261 App. Div. 550, 553 (1st Dept. 1941), aff’d, 286 N.Y. 628 (1941)

‘The courts are not entirely agreed as to the effect of the omission of a jurat or a signature thereto upon the affidavit. According to the majority view, such an omission is not fatal to the validity of the affidavit, so long as it appears, either from the rest of the instrument or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. This rule is based upon the principle that a party should not suffer by reason of the inadvertent omission of the officer to perform his duty. Under this view, an affidavit defective by reason of the omission of the jurat of the officer’s signature may, upon proof of its authenticity, be cured by amendment

Mailing affidavit is wrong

Greenway Med. Supply Corp. v ELRAC, Inc., 2016 NY Slip Op 51774(U)(App. Term 2d Dept. 2016)

“Furthermore, while plaintiff argues on appeal that its employee’s affidavit, which was submitted in opposition to plaintiff’s motion, was sufficient to establish that plaintiff had mailed its claim form within 45 days of the provision of the supplies, the affidavit has no probative value. The claim form was dated July 1, 2010 and the affidavit states, allegedly based upon the affiant’s personal knowledge, that the claim form was mailed on June 23, 2010.

Mr. Greenway seems to have lost track of time.


Putting the cart before the horse?

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51527(U)(App. Term 2d Dept, 2016)

“Defendant’s motion was properly denied, as defendant failed to establish, as a matter of law, that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Among other things, the affidavit attesting to the second failure to appear indicates, on its face, that it had been notarized before it was signed (see e.g. 97 NY Jur 2d, Summary Judgment, Etc. § 47 [proof in support of summary judgment must be in evidentiary form]).”

This is an interesting one.  The notarization occurred before the signature?  I am guessing the affiant’s signature was an original and the notary signature was a photocopy?  How was this determined?

An interesting credit card case

Citibank (South Dakota), N.A. v Abraham, 2016 NY Slip Op 03133 (2d Dept. 2016)

The usual credit card non-payment case is straightforward.  This one is not, and could give us attorneys that defend credit card defendants some wiggle room.

This is the case where the credit card issuer lowers the credit limit, the client does not adjust his minimum payment due and the promotional rate moves northward to 29.99%.  The Court found the breach of contract absent the cardholder agreement not to be proved.

The account statement was not granted due to the failure to show an absence of protest.  The court also found that a minimal payment in relation to the minimum due on account did not express an assent.  This is an interesting case.

Later conflicting statements are “feigned” issues of fact

Mirjani v DeVito, 2016 NY Slip Op 00448 (1st Dept. 2016)

“It is axiomatic that statements made by a party in an affidavit, a police report, or a deposition that are not denied by the party constitute an admission, and that later, conflicting statements containing a different version of the facts are insufficient to defeat summary judgment, as the later version presents only a feigned issue of fact

Defective notarization

Clarke v Scottsdale Ins. Co., 2014 NY Slip Op 51586(U)(App. Term 2d Dept. 2014)

(1) 2309 defect does not matter anymore.  “While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect”

(2)”Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). “